COURT AUTHORISED WILLS
To make a will, the willmaker must have ‘testamentary capacity’.
That does not mean, however, that a person lacking capacity is bound by an out-dated will, or destined to have their estate distributed in accordance with the intestacy provisions of the Succession Act 1981. An application may be made to the Supreme Court proposing that a particular will be authorised by the court for the incapacitated person (including a minor).
A person may have had capacity and “lost it” or never had capacity at all (from birth or they are a minor).
WHEN IS IT APPROPRIATE TO APPLY FOR A COURT AUTHORISED WILL?
If a person had capacity and “lost it”, there may be a will that has become out-of-date or the intestacy provision may otherwise be unsuitable.
Consider these examples of willmakers that have lost capacity:
A married couple made wills in favour of each other and subsequently separated but did not divorce – the will is still valid, even after the willmaker has lost capacity
A defacto couple made wills in favour of each other and subsequently separated – the will is still valid, even after the willmaker has lost capacity
A will made before the birth of children gifting the estate to siblings – the will is still valid after the willmaker has lost capacity and the children will have to bring a family provision claim against the estate to benefit from the estate
A will includes gifts to family and friends that have subsequently become estranged from the willmaker but the willmaker is cared for another person for many years – the will is still valid after the willmaker has lost capacity
A will is made in favour of a spouse. The willmaker suffers brain damage at the hands of the spouse and loses capacity. The will is still valid and the forfeiture rules don’t apply because she survived.
The Supreme Court may authorise that a will be made for the incapacitated person.
If a person never had testamentary capacity, for example, a person with an intellectual disability from birth, their estate will be distributed in accordance with the intestacy provisions of the Succession Act 1981.
The Supreme Court may, however, authorise that a will be made for the incapacitated person.
A ‘minor’ is any person under the age of 18 years.
A child may be significantly wealthy (whether independently or, for example, as the beneficiary of a trust)
A child who is working may have superannuation and the superannuation death benefit insurance may be significant. A person may only nominate a spouse, child, dependent or their estate as the beneficiary of their superannuation death benefits. A minor is unlikely to have a spouse, child or dependent so the funds will be paid to the estate.
A child may have received a significant personal injuries compensation payment.
When a child dies, the intestacy provisions apply. This usually means that the estate is distributed equally to the child’s mother and father.
Sometimes, one of the biological parents has not been a part of the child’s life for a long time, if at all. It may, therefore, not be appropriate for the intestacy provisions to apply, and one parent may wish to apply for a court authorised will to exclude the other parent from benefiting from the estate of the child.
The Supreme Court may authorise that a will be made for a minor.
We can advise you whether an application for a court authorised will is relevant and appropriate, collaborate with you (and other interested parties, if appropriate) to prepare a proposed will for the incapacitated person and assist you to make an application to the Supreme Court.
